Rudrappa Basappa Kudari (Marihal) vs Siddappa Ningappa Chachadi

-1- NC: 2023:KHC-D:12991 RSA No. 101388 of 2022 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 7TH DAY OF NOVEMBER, 2023 BEFORE THE HON'BLE MRS JUSTICE K.S.HEMALEKHA REGULAR SECOND APPEAL NO.101388 OF 2022 (PAR/POS) BETWEEN: RUDRAPPA BASAPPA KUDARI (MARIHAL), AGE. 72 YEARS, OCCUPATION. AGRICULTURE R/O. BORGAL VILLAGE, TALUK HUKKERI DISTRICT. BELAGAVI BY PA HOLDER SATYAPPA RUDRAPPA KUDARI AGE. 37 YEARS, OCC. PRIVATE SERVICE R/O. BORGAL VILLAGE, TALUK. HUKKERI DISTRICT: BELAGAVI-591309. ...APPELLANT (BY SRI. SRINIVAS B. NAIK, ADVOCATE) AND: Digitally signed by VISHAL 1. SIDDAPPA NINGAPPA CHACHADI VISHAL NINGAPPA NINGAPPA PATTIHAL AGE. 56 YEARS, OCCUPATION. AGRICULTURE PATTIHAL Date: R/O. NABHAPUR VILLAGE, TALUK. GOKAK 2023.11.16 11:03:20 +0530 DISTRICT. BELAGAVI-591218. 2. SHANKAR NINGAPPA CHACHADI AGE. 50 YEARS, OCCUPATION. AGRICULTURE R/O. NABHAPUR VILLAGE, TALUK. GOKAK DISTRICT. BELAGAVI-591218. 3. BASAPPA NINGAPPA CHACHADI AGE.44 YEARS, OCCUPATION. AGRICULTURE R/O. NABHAPUR VILLAGE, TALUK. GOKAK DISTRICT. BELAGAVI-591218. -2- NC: 2023:KHC-D:12991 RSA No. 101388 of 2022 4. RAMESH NINGAPPA CHACHADI AGE. 42 YEARS, OCCUPATION. AGRICULTURE R/O. NABHAPUR VILLAGE, TALUK. GOKAK DISTRICT. BELAGAVI-591218. 5. BASAPPA MALLAPPA KADI AGE. 72 YEARS, OCCUPATION. AGRICULTURE R/O. NABHAPUR VILLAGE, TALUK. GOKAK DISTRICT. BELAGAVI-591218. 6. FAKIRAPPA MALLAPPA KADI AGE. 67 YEARS, OCCUPATION. AGRICULTURE R/O. NABHAPUR VILLAGE, TALUK. GOKAK DISTRICT. BELAGAVI-591218. ...RESPONDENTS (BY SRI. M. L. VANTI, ADVOCATE FOR R1 TO R4; V/O/D 11/7/2023 NOTICE TO R5 AND R6 IS HELD PROPER) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC, 1908, PRAYING TO, SET ASIDE THE JUDGMENT AND DECREE DATED 29.10.2021 PASSED IN RA NO. 8018/2021 ON THE FILE OF XII ADDITIONAL DISTRICT AND SESSIONS JUDGE, BELAGAVI, SITTING AT GOKAK AND SET ASIDE THE JUDGMENT AND DECREE DATED 21.04.2021 PASSED IN OS NO. 415/2019 ON THE FILE OF II ADDITIONAL SENIOR CIVIL JUDGE, GOKAK AND ALLOW THE REGULAR FIRST APPEAL OF APPELLANT AND DISMISS THE SUIT OF PLAINTIFF, BY ALLOWING THIS APPEAL WITH COSTS IN THE ENDS OF JUSTICE AND EQUITY. THIS REGULAR SECOND APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING: -3- NC: 2023:KHC-D:12991 RSA No. 101388 of 2022 JUDGMENT Though the matter is listed for admission with consent of learned counsel on both the side, the matter is taken up for final disposal. 2. The present Second Appeal by the unsuccessful defendant assailing the concurrent findings of the Courts below, whereby, the suit seeking for partition and separate possession was decreed granting ¼ share collectively to the plaintiff and ¾ share to defendant No.1. 3. Heard Sri Srinivas B.Naik the learned counsel for the appellant and Sri M.L.Vanti, learned counsel appearing for the respondents and perused the Judgment and decree of the Courts below. 4. Parties herein are referred to as per their ranking before the Trial Court for the sake of convenience. 5. The brief facts of the case are as under: The family pedigree of the parties is as under: -4- NC: 2023:KHC-D:12991 RSA No. 101388 of 2022 (Basappa) (Tayawwa) Rudrappa-D.1 Siddappa Shankar Basappa Ramesh P.1 P.2 P.3 P.4 Suit seeking for partition and separate possession in respect of an agricultural land bearing RS.No.104/6 measuring 2 acres 7 guntas, plaintiffs claim equal share in the suit schedule property. Plaintiffs' mother Tayawwa is the sister of defendant No.1 and defendant No.2 and 3 though have been impleaded in the suit according to the plaintiff they no way concerned to the family of the plaintiffs and defendant No.1. 6. Pursuant to the suit summons issued by the Trial Court, the defendants appeared and filed their written statement, inter alia denying the averments made in the plaint and contended that defendant No.1 is the absolute owner in possession and enjoyment of the suit schedule property. -5- NC: 2023:KHC-D:12991 RSA No. 101388 of 2022 7. The Trial Court on the basis of the pleadings framed the following: ISSUES 1. Whether the plaintiffs prove that the suit property is an ancestral joint family property of themselves and defendant No.1? 2. Whether the defendant No.1 proves that the suit is bad for non-inclusion of all the family property? 3. Whether the plaintiffs are entitled to ½ share in the suit property ? 4. What order or decree ? 8. In order to substantiate their claim plaintiffs examined plaintiff No.3 as PW.1 and got marked documents at Ex.Ps.1 to P.9 and examined one witness Vijayaverma Dharmaraj Naik as PW.2. On the other hand, defendant No.1 examined the power of attorney holder as DW.1 and no documents were marked on their behalf. 9. The Trial Court on the basis of the pleadings, oral and documentary evidence held that the plaintiffs are entitled for the notional partition in the share of their mother Tayawwa -6- NC: 2023:KHC-D:12991 RSA No. 101388 of 2022 to the extent of ¼ share and defendant No.1 is entitled for ¾ share in the suit schedule property. The plaintiffs as well as the defendants preferred an appeal before the First Appellate Court. R.A.No.8014/2021 was preferred by the plaintiffs against the notional partition granted by the Trial Court and R.A.No.8018/2021 was preferred by defendant No.1 against granting of share to the plaintiffs. 10. The First Appellate Court re-appreciated the entire oral and documentary evidence and arrived at a conclusions that the plaintiffs and defendants have not made out the case for interference and accordingly dismissed the regular appeals, confirming the notional partition allotting 1/4th share collectively to the plaintiffs. 11. Defendant No.1 is before this Court assailing the Judgment and decree dismissing the appeal filed by defendant No.1 granting share itself to the plaintiffs. However, no appeal has been preferred by the plaintiffs against the dismissal of their appeal and confirming notional partition. -7- NC: 2023:KHC-D:12991 RSA No. 101388 of 2022 12. Heard the learned counsel for the appellant and the learned counsel appearing for the respondents and perused the Judgment and decree of the Courts below. 13. The undisputed facts are that the plaintiffs are the children of Tayawwa and the sister of defendant No.1. The Trial Court and the First Appellate Court though holds that the suit schedule properties are the ancestral joint family properties of the plaintiffs and defendant No.1 has held that the plaintiffs are entitled for 1/4th share in the share of the mother-Tayawwa. The Courts below have lost sight of Section 6 of the Hindu Succession (Amendment) Act, 2005 (Act 39 of 2005), which confers coparcenary right upon the daughters and they are entitled for equal share on par with the sons. The recent decision of the Apex Court in the case of Vineeta Sharma Vs. Rakesh Sharma and Others1 at paragraph No.137 which reads as under: "137. Resultantly, we answer the reference as under: 137.1. The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born 1 (2020) 9 SCC 1 -8- NC: 2023:KHC-D:12991 RSA No. 101388 of 2022 before or after the amendment in the same manner as son with same rights and liabilities. 137.2. The rights can be claimed by the daughter born earlier with effect from 9-9-2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before the 20th day of December, 2004. 137.3. Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9-9-2005. 137.4. The statutory fiction of partition created by the proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class I as specified in the Schedule to the 1956 Act or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed, the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal. 137.5. In view of the rigour of provisions of the Explanation to Section 6(5) of the 1956 Act, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had -9- NC: 2023:KHC-D:12991 RSA No. 101388 of 2022 been affected (sic effected) by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly." 14. The Apex Court in Vineeta Sharma's case referred supra referred to various concepts of Hindu Law, both codified and customary, being concepts such as coparcenary and joint Hindu family, the Apex Court held that the coparcener's father need not be alive as on 09.09.2005 in order for a daughter to inherit rights over the coparcenary property, as per amended Section 6 of the Hindu Succession Act, the Apex Court held that the right conferred on a daughter, the coparcenary property is by birth and the entitlement of the daughter is equal to that of a son and conferred the status of coparcener on the daughter born before or after the amendment in the same manner as son with same rights and liabilities. The plaintiffs preferred appeal before the First Appellate Court against the granting of notional partition, the First Appellate Court being the last fact finding Court ought to have granted equal share in light of the decision of the Apex Court in the case of Vineeta Sharma stated supra. Though the plaintiffs have not preferred any appeal assailing the dismissal of their First Appeal by the First Appellate Court, this Court in - 10 - NC: 2023:KHC-D:12991 RSA No. 101388 of 2022 exercise of the powers under Order XLI Rule 33 of CPC and in light of the law declared by the Apex Court that the daughters are entitled for equal share in the suit schedule property, the shares granted by the Trial Court and the First Appellate Court needs to be modified in the present appeal filed by defendant No.1. The scope of power under Rule 33 of Order XLI is wide enough to determine any question not only between the appellant and the respondents but also between the respondent and co-respondents. The only constrained on the power of the Court is that the parties before the Trial Court should also be there before the Appellate Court and accordingly the shares granted by the Trial Court and the First Appellate Court needs to be modified in the present Second Appeal preferred by defendant No.1. Accordingly, this Court pass the following: ORDER i) The Regular Second Appeal stands disposed of. ii) The shares of the plaintiffs and defendant No.1 are modified holding that the plaintiffs together are entitled for ½ share and defendant - 11 - NC: 2023:KHC-D:12991 RSA No. 101388 of 2022 No.1 is entitled for ½ share in the suit schedule properties. Sd/- JUDGE PJ,VNP/ Ct-Umd List No.: 1 Sl No.: 55